Friday, February 10, 2012

My answer for LegalEagle

Where I am sure he will find the answers to pretty much all his questions.

I asked him if Justice Douglas, who was on the Court at the Time of Miller also misunderstood Miller when he said in ADAMS v. WILLIAMS, 407 U.S. 143 (1972)?

The leading case is United States v. Miller, 307 U.S. 174 , upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id., at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."

"The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be [407 U.S. 143, 151] secured through the Militia - civilians primarily, soldiers on occasion." Id., at 178-179.

Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment.

I believe that Douglas gives the same opinion as I do.

In his response that Justice Douglas was wrong, LeaglEagle makes the mistake of pointing out that the Miller decision incorporated by reference, the decision ofAymette v. State, 21 Tenn. (2 Hump.) 154 (1840). Aymette makes the following point.

To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.

I think that quote from Aymette puts paid to any attempt to try to say that Miller related to private uses of firearms.

As for the topic of Desuetude and the Second Amendment, Justice Story points out in his commentaries (Commentaries on the Constitution 3:§ 1890) that:

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

The Second Amendment is related to the Duty of the Citizen to participate in the institution of the Militia, not anythiing to do with private arms as the refgerence in Aymette found Miller points out and makes clear. I think that Story's comment also makes it clear that the right is related to militia duty as well.

Yet it is beyond LegalEagle to read footnotes, or to read as it would seem. I have more than amply given my reasons following the civic right interpretation, not his theory based upon half-truths and fake history.

In Walz v. Tax Commission of the City of New York, 397 U.S. 664, 678 (1970) addresses the First Amendment--hardly what one would call a little used aspect of the Constitution, The United States Supreme Court asserted in it that: "It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it."

"It must be a very strong case," says Chief Justice Tilghman, "to justify the court in deciding, that an act standing on the statute book, unrepealed, is obsolete and invalid. I will not say that such case may not exist -- where there has been a non-user for a great number of years; where, from a change of times and manners, an ancient sleeping statute would do great mischief, if suddenly brought into action; where a long, practice inconsistent with it has prevailed, and, specially, where from other and latter statutes it might be inferred that in the apprehension of the legislature, the old one was not in force." 13 Serg. & Rawle, 452; Rutherf. Inst. B. 2, c. 6, s. 19; Merl. Repert. mot Desuetude.

That seems to back up my point about Desuetude--one cannot amend the Constitution by Judicial fiat--there is a Constitutional process for amendment, which Heller violated.

I am going to add a couple of quotes from cases which LegalEagle probably hasn't read since they, back up my assertions (APU):

The National Guard is the modern Militia reserved to the States by Art. I, § 8, cl. 15, 16, of the Constitution.

Maryland v. United States - 381 U.S. 41 (1965)

The District Court rejected the Governor's challenge, holding that the federal Guard was created pursuant to Congress' Article I, § 8, power to raise and support armies; that the fact that Guard units also have an identity as part of the state militia does not limit Congress' plenary authority to train the units as it sees fit when the Guard is called to active federal service; and that, accordingly, the Constitution neither required the gubernatorial veto nor prohibited its withdrawal. The Court of Appeals affirmed.

Perpich v. Department of Defense, 496 U.S. 334 (1990).

The Second Amendment relates to the Body created under Article I, Section 8, clause 16.

What are the powers granted to Congress under this clause--LegalEagle?

I think that you are only proving that you have no idea of what you are talking about, LegalEagle.

And LegalEagle repeating lies will not make them true, nor will they persuade me of anything other than you have no idea of what you are talking about.

LegaleEagle, you are intellectually dishonest if not just a plain fool. You are an ideeologue, not a lawyer.

Additionally, LegalEagle, I won't do your thinking for you, but it is quite obvious that you do prefer to let others do your thinking for you.

I think for myself and fashion my own opinions based upon my own experience--not because someone tells me it is so.

24 comments:

I look forward to hearing Legaleagle's reply, but perhaps, Laci, you could explain how Heller or McDonald violate the Constitution. How is it that those decisions take away any government power implied in the Second Amendment? The Court has a history of finding rights that weren't recognized before--abortion, for example. Is that a violation of the Constitution?

Once again, you are demonstrating your intellectual deficits, and in particular, your intellectual laziness in informing yourself of the existing body of material on this topic, expecting either Leagle Eagle, and/or Laci, to do that for you.

Which by the way validates my assertion that rights change and grow (and in some cases become obsolete, like the right to own people as proeprty, in other words, slavery).

I feel in good company with Warren and Brandeis, even way back in 1890. They understood both law and that subject on which you are so deficient, but feel free to pontificate, 'moral philosophy'.

That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; ..."

1. I asked the writers here, not Justice Brandeis. He's not available to answer questions. You're presenting a position now. I call it intellectual laziness to let others do your thinking for you. You quote and quote and quote. How about answering questions yourself?

2. There never was a right to own slaves. The thinking that justified ownership was flawed.

3. Rights are fundamental, not subject to time or opinion. There are times in which people don't recognize rights, but that does not change their existence.

4. The quotation that you offered discusses expansion of rights, not taking rights away.

DG - your quote seems to imply that by nature rights have expanded as our understanding of a person's right to life has expanded. This would argue for more lenient gun laws in that a gun is a very effective weapon that can be used in protecting our right to life.

Greg, once again you demonstrate your ignorance and intellectual laziness. See link at top.

But, since you are a notorious idiot --I'll have to spell it out for you.

Only an Amendment to the Constitution can change a well established interpretation of the law.

The Civic right interpretation was pretty much the only accepted one prior to the emergence of the pseudo-scholarship revision of the Second Amendment History.

So, for nearly 70 years, Courts followed the Civic Right interpretation.

In fact, the Parker Court was bound by Sandidge v. United States, 520 A.2d 1057 (D.C. Cir. 1987), yet it chose to ignore that case since the holding said:

The purpose of the second amendment is "to preserve the effectiveness and assure the continuation of the state militia." United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978). Appellant cannot show that possession of a handgun by an individual bears any relationship to the District of Columbia's desire and ability to preserve a well regulated militia. See D.C.Code '' 39-106, - 201 (1981) (provides for organized militia, called the National Guard, to be armed by government); Miller, 307 U.S. at 178, 59 S.Ct. at 818; Warin, 530 F.2d at 106 (possession of submachine gun by individual has no relationship to preservation or efficiency of a well regulated militia).

Unless, there had been new evidence or a change in law, the Parker Court was bound by Sandidge.

Laci - if it was commonly understood that the 2nd Amendment only applied in conjunction with service in the militia, why has personal ownership of weapons persisted so long in our country after the militias dissappeared? Shouldn't these weapons have been rounded up as they were no longer legally owned according to the Constitution?

Jim, the militia aspect of the 2nd Amendment only addresses the arming for militia purposes. It says nothing one way or the other about the legality otherwise of firearms for any other purpose. It merely specifies the rights in connection with the militia.

That means that there no right to a personal firearm, but it also doesn't go the other extreme and make it constitutionally illegal.

If the 2nd Amendment has no bearing on personal ownership of weapons, then the Supreme Court should be refusing to rule on any regulations concerning personal firearms as they are not a Federal issue. I know of no other place in the Constitution that personal ownership of weapons is forbidden, therefore it would become a State Issue via the 10th Amendment correct? I also don't see how any federal level programs such as ATF have a right to regulate gun issues as long as they do not cross state lines.

I would refer you to Article 6 of the Constitution, which reads"This Constitution and the Laws of the United States....under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding."

Common sense, rule of law, and the language of the Constitution DO live here, your poor understanding of it notwithstanding.

Wrong, DG,I refer you to the 10th amendment,The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.Unless of course you can show me where the Constitution prohibits individuals from keeping and bearing arms.I had to use the 10th amendment because you can't comprehend the simple intent and meaning of the 2A.I guess they put that 'shall not be infringed' in there just in case the militia wasn't well regulated.orlin sellers

Oh, but I can. I was educated in one of those northern states that does a good job in the areas of education.

Article 6 indicates that where there is both state and federal law, federal law applies or is preeminent.

Firearms comes quite properly under that provision, and as it preceded ALL the amendments is closer to that filiopietistic stuff the 2A'ers like to espouse as well........except when it doesn't suit their purposes. Then it's to hell with the founding fathers among your lot.

What demonstrates that has been the multiple, independent ratings, using multiple means of measurement, that consistently place not only my state but the surrounding states in the top rankings in comparison to other states.

Because I was recognized early as a gifted student, I was tested a LOT more often than most students, so I know exactly where I rank, both academically and by IQ, and where my school district ranked, and where my state and the surrounding states ranked.

For example, I was reading at what standardized testing rated 2nd year college level when I was in 6th grade, and not only reading with excellent comprehension and retention, but far far faster than most college age students. I'm betting you weren't.

And I've traveled enough of the world to know pretty well how that education holds up in comparison to the education provided in other parts of the planet.

Gee Orlon, did I strike a nerve? ARE you from one of those southern underachieving, dumbed down tea party ideology driven curricula states?

By the way, if you are referring to volcanic rocks, the word is amygdaloids. Does your hypocampus, amygdala and other parts of your primitive brain bother you much? You have an amygdala too, and I'd bet it is all swollen and lumpy, instead of a nice normal one.

Since we're whipping ours out for measuring, my test scores on nationally recognized assessments have been similar to what you claim about yours, particularly my reading ability. Your fetish is how smart you think you are.

DG,I'm glad you took the 'rocks in your head' in the spirit is was intended.

It always cracks me up when people bring up IQs. They gave those tests to find out if the kids were retarded or slow.Don't they call those kids in Special Olympics 'gifted'?

My education? It has never stopped, I'm still learning. I don't know everything. Like somebody once said, I didn't let schooling get in the way of my education."

But, what I do know is that there is a philosophy of natural law. Life, Liberty, and pursuit of happiness is a part of it, just like the idea of not hurting others or initiating force against another. It is the direct opposite of pragmatism and the 'ends justify the means'.orlin sellers

I have to wonder if Dog Gone isn't the kind of person who takes lots of classes, but never does anything with them. Of course, from what she's told us about her work experience, she appears to have done a lot of filing papers and making coffee.

They cited the case they did not incorporate same by reference. Incorporation, as you should know is completely different from citing. I would think some who passed the bar would know this... but let us continue...

Yep, they held that bear arms has a military meaning.... but look at what they say about “keep arms”

“The legislature, therefore, have a right to prohibit the wearing, or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence.”

However as to the right to keep a weapon which does contribute to the common defense the court stated:

“The citizens have the unqualified right to keep the weapon, it being of the character before described, as being intended by this provision.”

Not members of the militia, but citizens. Thus Heller correctly decided the case in regard to its absolute ban on handguns, all in accord with Miller and Amyette, because citizens "have the unqualified right to keep the weapon".

Now if you were really good you would have shepardized Aymette and discovered a later case from the same court describing what was meant by “keep arms”.

“The right to keep arms, necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair. And clearly for this purpose, a man would have the right to carry them to and from his home, and no one could claim that the Legislature had the right to punish him for it, without violating this clause of the Constitution.But farther than this, it must be held, that the right to keep arms, involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace; that in such use, he shall not use them for violation of the rights of others, or the paramount rights of the community of which he makes a part.” Andrews v. State, 50 Tenn. (3 Heisk.) 165, 8 Am. Rep. 8 (1871).

Now this is exactly in accord with the English decisions rendered prior to the American Revolution and involving the keeping of arms:

The Game Acts did “not extend to prohibit a man from keeping a gun for his necessary defence." Rex v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B. 1739). “[T]he mere having a gun was no offense . . . for a man may keep a gun for the defense of his house and family." Mallock v. Eastley, 87 Eng. Rep. 1370, 1374 (K.B. 1744). "[A] gun may be kept for the defense of a man’shouse." Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B. 1752); accord, The King v. Thompson, 100 Eng. Rep. 10, 12 (K.B. 1787) (it is “not an offence to keep or use a gun”), and Rex v. Hartley, II Chitty 1178, 1183 (1782) (“a gun may be used for other purposes, as the protection of a man's house.”).

I assume that you have now read Miller and agree with me, since you made no further comment. I also assume the corresponce law school you attended did not teach you how to shepardize a case.

I responded to your incorrect interpretation of both Maryland and Perpich where you originally poised the question, I will "incorporate that response herein by this reference". LOL

But in addition you might take a look at 32 U.S.C. §109, before you claim that the NG is the only Article I, Sec 8, cl 15-16 militia.

Laci The Dog wrote: "That seems to back up my point about Desuetude--one cannot amend the Constitution by Judicial fiat--there is a Constitutional process for amendment, which Heller violated."

Assuming only if we accept you interpretation of the 2nd. If we accept my interpretation of the 2nd you can not claim the 2nd is obsolete because the well regulated militia does not exist and therefore assert that it is a dead letter. So Heller got it right, the 2nd protects an individual right to arms for private purposes unconnected to any membership in a well regulated militia and that provision is not subject to obsolensce by the nature of the well regulated militia today.

Glad we agree, but your point was what exactly? That we disagree on the original meaning of the 2nd?

Well, DUH!!!

So you come up with any examples of what would constitute a violation of your version of the 2nd yet?